The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-29

would assume to say 10 the Senate of Indiana
who should preside over it, and who should nots
Or to the joint convention. assembled conform.
ably to the law OF Congress. in the execution OF
d federal duty, who should or should not pre-
side over it2 And vet, Just that has been done
here, il your Honors please. And that is the
second branch of this question OF jurisdiction,
upon which shall say but a word.
You are asked to sustain an injunction that
does not run according to the will of the Senate
The Senate have not invoked your power
Green Smith is the relator. That Is to lay the
Senate of Indiana at your feet and say to them
''Whatever your view of this question may be;
whatever the wish of the majority of your mem
bers may be, Robert S. Robertson, at your re-
quest, even, shall not preside over you" Or,
coming into Joint convention to ballot for q
United States Senator under the federal statute,
which regulates the whole proceeding. but. as
the court below said, does not indicate who
shall preside over 1t. And his Honor. Judge
Ayres, EXPRESSED the opinion that they might
choose anybody to preside over 1t, whether
member of the joint convention or not Ana
yet. though it was not function of the office or
Lieutenant governor, though the court said 1t
was in the power of that body, and that if he
presided at all it was by mere courtesy, yet the
judicial power stretched its hand into
that chamber where the two houses OF the
Legislature of Indiana assem-
b.el, and put its restraint upon every member
of that body. If this order might have been
granted, then suppose every man who might
siding that joint convention would have
been liable to process for contempt No. II
your Honors please, this writ of injunction Is
sui generis. 1t occupies pinnacle of absurdity
that has never been reached in Judicial pro-
ceeding before.
understood the question to be propounded by
one of the judges that the Senate refusing to
admit Colonel Robertson to his seat, whether or
not he might not have applied for a writ of man
date. Manifestly not. Certainly that question
will not hear con Si0eration Mandatpt
Justice NATURALIZATION me; that was not
the question / put at all. The question l put
was Suppose that Colonel Robertson, in at
tempting. in persisting in his right to preside.
contempt.
Senator Harrison-I was not alluding to the
question propounded by your Honor this
afternoon. but to one propounded this morning
yesterday.
Justice MITCHELL never had such question
as that in my mind. ii it relates to me-
Justice Zollars-I do not recollect Of asking
such question.
Senator Harrison-If not, if the very sueges
ton of the proposition as l made it, meets with
disclaimer on all hands, then does it not show
q limitation of power in this court in dealing
with the subject Yon can keep man out of
presiding over the Senate. You can. by inlunc-
tion restrain him from doing it. but You cannot
compel the Senate by mandate to permit him to
do it. One would think these remedies ought to
be mutual.
WAS THEIE AN ELECTION2
But. if your Honcrs please. if can ever
come so far, if these threshold questions may be
safely passed, and we can ever reach the ques-
ton whether there was an election for Lieuten
ant governor, on the I'd day of November last
then have upon that subject a few words to
say.
And let me say first. that my client here does
not come as an impostor. he does not come with
the rude and vulgar airs of usurper, for rude
ness and vulgarity are the natural apparel of the
usurper He comes here. after having submitted
to the intelligent voters of Indiana his character
and fitness for this high Office. Not one member
OF this court. l may assume; not one of the
learned counsel for the relator not one, proba-
bly, of this little company that hear me to-day,
but expressed his choice. l do not say, at all
that this must be conclusive upon the body en-
dowed, under the Constitution. with the power
to try his right to the Office; but do say, may it
| please your Honors, that, whatever that tribunal
is, whether the Legislature or this court, my
client comes before it in attitude to challenge
their respect, and backed by popular sentiment
that demands that the questions which are at
| issue shall have the most careful and deliberate
consideration of the tribunal trying them. In
government of the people, by the people, and for
the people, constitutions must not be strained
to deprive them of the right to choose their own
officers. If your Honors please, this is popu-
lar government. Right jealous and careful were
| the trainers of our Constitution to secure to the
people the right to select those who were to ad-
minister all three of the departments of our
| State government. Previously, in many places
| indeed now, the Judiciary of the State had been
appointive; but under this Constitution the peo-
| pie took to themselves the right to choose the
| members of this high tribunal and every other
| judicial officer in the State of Indiana. They
| especially declared in the Constitution that
| the Governor and Lieutenant governor should
be elected by the people If there is a vacancy
| in the Office, as is admitted, and we are
brought to a study of the Constitution as to
whether the people, by the ordinary methods
pointed out by law, may fill it according to their
| choice, say again, we should come to the con-
sideration of that question with disposition to
| effectuate if we can, the popular will. Not
that we can do so at the expense Of plain provis-
| ions of the Constitution. but with disposition
| to do so, if liberal and kindly construction car
give to the people this right to choose their own
| Lieutenant-governor. l press this upon the
| court: If the question is doubtful, the doub1
| should be solved the side of popular govern
ment l am not INDUCING in propositions thai
can be labeled Republican or Democratic; they
are principles that all parties and all statesmen
at least, affect to reverence.
| Now, coming to the consideration OF our Con
stitution in such spirit. and remembering thai
the chief executive of this State having calico
| upon its law officer received from him an opin
| ion that there a vacancy that should b.
filled; remem bering that IN every county of thi.
State the administrative officer, the sheriff
| issued his notice to the electors to choose a Lieu
| tenant-governor, remembering that through al
that campaign no man interposed by injunction
against sheriff from publishing such motto,
or sought to raise the question until the issue
had been fought out at the polls; rememberin!
that all the forms Of law have been observed
remembering that a half million of free peop
Of all political parties in this State have ex
pressed their choice in an orderly and honest wa,
at the polls that is unchallenged as true ex
preston of the popular WILL remembering al
that, let come to a consideration of tn
question whether there is anything in our Con
stitution that prohibited the people from choos
ing ACKNOWLEDGEMENTS on the I'd day of las
November.
If your Honors please, I have here before m
the second volume of the constitutional debates
Your Honors are familiar with the manner i
which this book is compiled, and of course kno,
that the Constitution, as it was adopted by sec
tions as the convention acted upon it. was re